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Datamyne Blog

A Better-Balanced CBP Regulation

Intent is to protect the rights of trademark holders and legitimate importers

by Peter Quinter, guest columnist

Finally, after years of debate, on April 24 Customs and Border Protection (CBP) amended its regulations regarding the detention and seizure of suspected imported counterfeit merchandise.

In my opinion, it provides a good balance between the rights of legitimate importers, and the need for CBP to examine, detain, and seize merchandise that violates the trademark rights of companies that have registered their trademarks with the US Patent and Trademark Office and then recorded those trademarks with CBP. The interim rule is entitled “Disclosure of Information for Certain Intellectual Property Rights Enforced at the Border,” and amends 19 CFR Parts 133 and 151.

In summary, here are the important changes:

Merchandise may be detained by CBP for up to 30 days from the date the merchandise is presented for examination to CBP.

The US importer will receive written notification from CBP within five days of the detention of the merchandise by CBP.

The US importer then has seven days to establish to CBP’s satisfaction that the detained merchandise is not counterfeit.

CBP may provide to the trademark owner, at any time, written notice of the date of importation, the port of entry, the description of the merchandise, the quantity, and the country of origin. CBP may also release an actual sample of the detained merchandise and its retail packaging to the trademark owner upon receipt of a bond.

Only after seizure of imported merchandise will CBP provide the trademark owner the name and address of the foreign manufacturer, the foreign exporter, and the US importer.

The trademark owner may provide written consent to the importer within 30 days of the issuance of a notice of seizure by CBP to allow for the entry of the merchandise into the United States, or allow for its exportation from the United States, in its current condition, or after obliteration of the counterfeit trademarks.

The above procedure is one that I have long lobbied the Intellectual Property Rights Branch of CBP to implement. The question now is whether the CBP officers around the United States will really follow this new change to provide the formal and accurate Notice of Detention to the US importer within the required five-day time period from the date of the decision to detain. Stay tuned.

Please call or email me with any questions or comments at [email protected] or (954) 270-1864.

Long-time Datamyne Blog contributor Peter Quinter is now a Shareholder in GrayRobinson’s Miami and Ft. Lauderdale offices and Chair of the Customs & International Trade Law Group. Mr. Quinter principally represents persons and companies involved in international trade and transportation. He is editor of the GrayRobinson Customs and International Law Blog. Quinter is widely recognized for his expertise in international and trade law: He was appointed by US Secretary of Commerce to the Florida District Export Council; Florida Trend magazine recognizes Quinter among its “Legal Elite” in the area of International Law; Florida Super Lawyer magazine includes him in the top 5% of Florida; and he is recognized in “Best Lawyers in America” in the area of FDA Law.

The opinions expressed in this article are those of its author and do not purport to reflect the opinions or views or Descartes Datamyne. In addition, this article is for general information purposes only and it’s not intended to provide legal advice or opinions of any kind and my not be used for professional or commercial purposes. No one should act, or refrain from acting, based solely on this article without first seeking appropriate legal or other professional advice.